The Legal Challenge of Integrated Marketing Communication (IMC): Integrating Commercial

and Political Speech

Author(s): Kathy R. Fitzpatrick
Source: Journal of Advertising, Vol. 34, No. 4, Integrated Marketing Communication (IMC)
(Winter, 2005), pp. 93-102
Published by: Taylor & Francis, Ltd.
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THE LEGAL CHALLENGE OF INTEGRATED MARKETING COMMUNICATION (IMC)

Integrating Commercial and Political Speech
Kathy R. Fitzpatrick
ABSTRACT: The application of First Amendment commercial speech doctrine to integrated marketing communication
(IMC) demonstrates that the integration of public relations messages with advertising and marketing messages may
dilute the constitutional protection afforded corporate speech. This analysis of U.S. Supreme Court precedents shows
that by intermingling political expression with commercial expression, a corporation may expand the range of
communication that may be defined and regulated as commercial speech. The additional review of a California Supreme
Court case that redefined commercial speech to include public relations messages illustrates the potential for heightened
regulation of integrated marketing communication.

Integrated marketing communication (IMC) has been recognized as "themajor communications development of the last
decade of the 20th century" (Kitchen et al. 2004, p. 20),
"one of the hottest topics in the whole marketing arena"
(Schultz 1993, p. 6), and "the dominant marketing concept
of the 1990s" (Harris 1997, p. 91). In a 2004 review of the
state of IMC, the authors concluded that "IMChas swept the
world and become the accepted norm of businesses and apparently the agencies that service their needs.... Evidently,
IMC is here to stay" (Kitchen et al. 2004, p. 19).
At the same time, scholarsand practitioners recognize significant challenges in IMC's future. Fundamental questions
regarding the purpose and scope of IMC still must be resolved (Kitchen 1999; Shimp 2000). Theoretical foundations
of IMC must be established (Cornelissen 2001; Kitchen et al.
2004; Schultz and Kitchen 2000). An effective means of
measuring IMC must be developed (Swain 2004). A viable
organizationalstructuremust be agreed on (Wightman 1999),
and the practical realities of adopting IMC as an operating
philosophy must be addressed (Smith 2002).
Another matter that could be significant to the development of IMC is the legal and regulatory environment. Of
particular importance is whether the merging of the traditionally separate communication functions of marketing,
advertising, and public relations in an effort to unify corporate messages may affect the constitutional protection afforded
corporate speech, or the full range of a corporation'spolitical
and commercial expression. A significant concern is whether

Kathy R. Fitzpatrick U.D., Southern Methodist University) is associate professorand director, M.A. program in public relations and
advertising, Department of Communication, DePaul University.

public relations messages-widely believed to be political

expression fully protected under the First Amendment-that
are intermingled with commercial messages as a result of IMC
might be interpreted by the courts to be commercial speech
and affordedonly limited constitutional protection. If so, such
messages would be subjected to the strict standardsfor truthfulness historically applied to advertisements and other forms
of promotions.
This paper addressesthe issue by examining First Amendment theory-specifically commercial speech doctrine-in
the context of integrated marketing communication in an effort to determine the constitutional impact of combining corporate commercial speech and corporatepolitical speech. The
specific researchquestion is, Does the integration of public relations messages with advertising and marketing messages alter FirstAmendment protection affordedcorporateexpression?
This question is answered through review and analysis of
key U.S. Supreme Court decisions that illustrate the Court's
evolving views on commercial speech regulation. Although
the Court has not directly addressedthe issue of constitutionally permissible restrictions on IMC practices, the cases provide important insight into likely future decisions regarding
the constitutional status of integrated marketing communication. As Pratt observed, "it is logical to assume that the
Court will use already formulated doctrines as 'templates' in
deciding the appropriate level of First Amendment protection for public relations expression" (1990, p. 206). The review of cases is followed by an examination of how commercial
speech precedents were applied in a recent CaliforniaSupreme
Court decision that expanded the definition of commercial
speech to include public relations statements. This case, Kasky
v. Nike, Inc.(2002), serves as an example of the potential legal
challengesassociatedwith integratedcommunication practices.
Journal of Advertising. vol. 34, no. 4 (Winter 2005), pp. 93-102.
( 2005 American Academy of Advertising. All rights reserved.
ISSN 0091-3367 / 2005 $9.50 + 0.00.

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This researchaddressesan important question that has received little consideration in scholarly and professional discussions of IMC. A number of legal studies have examined
the distinctions between commercial and political speech and,
more recently, the First Amendment implications of Kaskyv.
Nike, Inc.(see, e.g., LaFetra2004; Marcantonio2003; McIntyre
2004; Paladino 2004). In the advertising context, earlierstudies explored the possibility for heightened regulation of image and advocacy advertisements that address both political
and commercial matters (see, e.g., Cutler and Muehling 1989;
Lin 1988). Yet the legal implications of IMC have not been
addressed. This work helps to fill that gap by examining the
possibility for heightened regulatory scrutiny of public relations messages as a result of integrated practices.
From a managerial perspective, the work is significant because it examines a key legal issue that could influence the
development and practice of IMC. For example, legal risks
associated with integration could create reluctanceon the part
of company leaders to adopt IMC models. Legal risks could
affect strategic planning and tactical implementation of IMC
efforts, including decisions about the placement and structure of IMC functions. Legal concerns could also lead to
"chilled" speech by corporations fearful of lawsuits based on
increased speech standardsfor evaluating deceptive practices.
This work responds to Kim, Han, and Schultz, who called
for "further academic attention to help identify various development paths IMC might take in the various nations and
countries of the world," including "the various factors that
influence the implementation of IMC" (2004, p. 44). The
study supports their finding that the marketing environment
can present some possible barriersto integration of communication by adding legal and regulatory issues to the social,
cultural, and institutional factors "that can act either to promote or to impede the development of IMC" in the United
States (ibid.).
1MC AND PUBLIC RELATIONS
By definition, integratedmarketing communication involves
the merging of distinct communication functions in a way
that allows an organizationto speakwith "onevoice, one look."
According to Shimp (2000), one of the defining features of
IMC is that it uses all forms of communication and all sources
of brand or company contacts as prospective message delivery
channels. The ultimate goal is to influence buying behavior
through directed persuasive communication targeted to a
broad range of stakeholders that influence brand image and
organizational reputation. As noted in a 2004 IMC white paper, IMC today is about more than just advertising and promotion. Indeed, "[tit is increasingly being recognized that
other stakeholders-employees, suppliers, channel members,

and the media

play critical

roles in defining brandsand

reputations of organizations" (Duncan and Mulhern, p. 8).

It seems clear that public relations, which is widely viewed
as the function responsiblefor managing an institution's communication with its publics (see Cutlip, Center, and Broom
1994, p. 2), would play a prominent role in such efforts. In
fact, there is growing evidence that public relations has become an integral part of IMC in companies that recognize the
importance of communicating clear and consistent messages
about their products, services,and practicesto consumerswho
don't distinguish internalmessage sources(see Miller and Rose
1994). One recent study in the United Kingdom found that
public relations was "oneof the most important aspects of the
marketing mix" (Gray 1998, p. 24). As Smith observed, the
link between public relationsand marketing is "oftenassumed
by people and forcesoutside the professionsmore readily than
it may be recognized from within" (2004, p. 6).
In fact, it was this "outside-in"perspective that propelled
the inclusion of public relations in IMC. Caywoodargued that
"[mlore than other professions, public relations strengthens
the outside-in perspectiveof an organizationthrough its managed relationships with many stakeholdergroups inside and
outside the organization"(1997, p. xii). As experts in the managing of communication, he said, public relationsprofessionals
offerorganizations"thegreatestexperienceand skill using various communications-based strategies and tactics" (p. xii).
Others have noted that "the full breadth of public relations" (Moriarty 1994, p. 44) is important in IMC programs.
Moriarty observed that since "IMC is focused on the total
corporate or brand image, it is important to turn to public
relations for a more global understanding of how impressions
are created"(ibid.). Indeed, the fact that IMC is increasingly
viewed as more strategic than executional, involving more
stakeholders than just customers and including two-way as
well as one-way communication (see Duncan and Mulhern
2004), suggests an even greater role for public relations in
IMC-a role that extends beyond publicity to include broaderbased public relations strategies and tactics designed to enhance an organization'srelationships with its publics.
At the same time, the blending of the traditional communication functions may create a message development process
in which the lines between political and commercial expression become blurred, creating a significant legal challenge
for IMC: finding a way to reap the benefits of unified public
relations, advertising, and marketing messages, while preserving constitutional safeguardson corporateexpression.
CORPORATE SPEECH AND
THE FIRST AMENDMENT
It is a well-established principle in First Amendment law that
corporate speech dealing with issues of public interest and
importanceis fully protectedunder the U.S. Constitution (First

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Winter2005

National Bank of Bostonv. Bellotti 1978). While not absolute,

ideological, or "political"speech, involving matters of public
concern "occupies the 'highest rung of the hierarchy of First
Amendment values,' and is entitled to special protection"
(Connickv. Myers 1983, p. 145, citing NAACP v. Claiborne
HardwareCompany1982, p. 913). Even false political speech
is fully protected to provide the "breathing space" needed to
prevent the chilling of communication through prior restraints
(see Near v. Minnesota1931).
At the same time, nonideological, or "commercial,"speech
intended to promote commercial transactions is entitled to
only limited First Amendment protection conditioned on its
truthfulness. The U.S. SupremeCourt has held that "theStates
and Federal Government are free to prevent the dissemination of commercial speech that is false, deceptive, or misleading" (Zaudererv. Officeof DisciplinaryCounselof SupremeCourt
of Ohio 1985, p. 638). Commercial expression in the U.S. is
regulated primarily by the Federal Trade Commission (FTC)
and the 50 states, all of which have enacted legislation aimed
at preventing unfair or deceptive "advertising"practices.
Thus, a threshold issue in determining the constitutional
status of corporate messages is whether the speech in question is political speech entitled to full protection of the First
Amendment or commercial speech affordedonly limited constitutional protection (see Bolgerv. YoungsDrug ProductsCorporation 1983, p. 65). Although the issue of permissible
restrictions on public relations expression has not been directly addressed by the Court, a recent review of Supreme
Court cases in which the term "public relations"or one of its
many synonyms was used concluded that the Supreme Court
would most likely treat public relations speech as "political
speech, protected at the highest level" (Petersen and Lang
2000, p. 35). Advertising and marketing practices, on the
other hand, have been clearly defined by the Court as commercial expression afforded only some protection under the
First Amendment (VirginiaStateBoardof Pharmacyv. Virginia
CitizensConsumerCouncil1976).
In cases in which political speech is blended with commercial speech, the Court must determine whether the combined
expression is "inextricably intertwined" such that it cannot
be separated for regulatory purposes and is therefore entitled
to the full protection of the First Amendment (see Riley v.
National Federationof the Blind 1988, p. 796). If the Court
finds that political speech and commercial speech are simply
intermingled-the likely scenario in IMC efforts-the Court
may determine that the commercialspeech and political speech
should be separated such that the political portion receives
the full protection of the First Amendment, whereas the commercial portion receives only limited protection. Another
possibility is that the Court may decide that the intermingled
speech in its entiretyshould be classified as political expression
and afforded fulllconstitutional protection, or, in the alterna-

95

tive, that the intermingled speech in its entiretyshould be classified as commercial speech and provided limited protection.
Evolving Commercial Speech Doctrine
For much of the twentieth century, commercial speech received no protection under the First Amendment. Indeed, in
a 1942 case in which the U.S. Supreme Court upheld a New
York City ordinance that banned advertising leaflets on city
streets, the Court found that "purely commercial advertising" designed to promote a business transactionwas not worthy of constitutional protection (Valentinev. Chrestensen
1942,
p. 54). The court also ruled that the prohibition on advertising could not be avoided by amending a political message to
an advertisement or, in other words, by combining political
and commercial speech.
The Court later reversedcourse, finding that "the relationship of speech to the marketplace of products or of services
does not make it valueless in the marketplaceof ideas"(Bigelow
v. Virginia 1975, p. 826). In a 1975 case in which the Court
struck down a state statute prohibiting the advertisement of
abortion services, the Court observed that commercial advertising deserves "a degree" of protection (ibid., p. 821). Yet,
while emphasizing that speech appearingin the form of an advertisement clearly is not "strippedof First Amendment protection" (ibid., p. 818; see also New YorkTimesv. Sullivan 1964,
p. 266), the Court failed to provide clear criteria for defining
commercial speech, saying, "The diverse motives, means, and
messagesof advertisingmay make speech'commercial'in widely
varying degrees"(Bigelowv. Virginia1975, p. 826).
Two years later, the Court found a Virginia statute that
prohibited licensed pharmacists from advertising the prices
of prescription drugs to be an unconstitutional violation of
the First Amendment (VirginiaStateBoardof Pharmacyv. Virginia CitizensConsumerCouncil 1976). Recognizing an informational value in commercial expression, the Court ruled that
"purely commercial" speech, defined as "speech which does
no more than propose a commercial transaction" should be
afforded limited constitutional protection "to insure that the
flow of truthful and legitimate commercial information is
unimpaired"(ibid., p. 772). Any type of speech that lacks all
First Amendment protection, the Court reasoned, must be
distinguished by its content, not simply because it is "speech
on a commercial subject" (ibid., p. 761).
At the same time, the Court noted that because commercial speech is "the offspring of economic self-interest," it is
less likely to be "chilled" by regulation than is political expression. Commercial speech is both "moredurable"and more
easily verified, the Court said, because it deals with matters
about which the speaker has knowledge and control (Virginia
State Board of Pharmacyv. Virginia Citizens ConsumerCouncil
1976, p. 772, n. 24). In 1980, the Court broadened the defi-

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nition of commercial speech to include "expression related

solely to the economic interests of the speaker and its audience" (CentralHudsonGas & ElectricCo. v. PublicServiceCommission 1980, p. 561), effectively expanding the scope of
messages that may be deemed commercial.
The question of how to deal with political speech mixed
with commercial speech was addressed directly in Bolgerv.
a 1983 case involving a state
YoungsDrug ProductsCorporation,
statute that prohibited the unsolicited advertisement of contraceptives. In determining whether promotional and informational flyers distributed as part of a corporate campaign
fell within the "corenotion of commercial speech," defined in
this case as "speech which does no more than propose a commercial transaction"(1983, p. 66), the Court found that while
most of the materials were properly categorized as commercial speech and, therefore, could be regulated, the informational pamphlets required greater scrutiny.
Relying on what it called a "common sense" distinction,
the BolgerCourt found that neither the advertising format of
the flyers nor references to a specific product or service was
necessarilydeterminative in a finding that the materials were
commercial speech (1983, p. 64). The Court also said, "economic motivation would clearly be insufficient by itself to
turn the materials into commercial speech"(ibid., p. 67). The
Court concluded, however, that the presence of all three elements provided "strong support"for a determination that the
informational pamphlets were properly characterizedas commercial speech (ibid., p. 67).
With respect to the fact that the mailings contained discussions of important public issues, the Court said that advertising that "links a product to a current public debate is
not thereby entitled to the constitutional protection afforded
noncommercial speech" (Bolgerv. YoungsDrug ProductsCorporation 1983, p. 68). Perhaps most important with regard to
IMC, the Court continued, "A company has the full panoply
of protections available to its direct comments on public issues, so there is no reasonfor providing similar constitutional
protection when such statementsare made in the context of commercial transactions" (ibid.; emphasis added).

In 1988, the Court again addressed the proper assessment

of combined commercial and noncommercial expression,
reaching a different conclusion. In a case involving a constitutional challenge to the fee disclosure provisions of North
Carolina'sCharitable Solicitations Act, the Court found that
commercial speech "does not retain its commercial character
when it is inextricably intertwined with the otherwise fully
of theBlind 1988,
protected speech"(Rileyv. NationalFederation
p. 796). According to the Court, the nature of the speech
"takenas a whole" must be consideredwhen determining constitutional protection (ibid.). "[W]here, as here the component parts of a single speech are inextricably intertwined, we
cannot parcel OUt the speech, applying one test to one phrase

and another test to another phrase. Such an endeavor would

be both artificial and impractical. Therefore, we apply our
test for fully protected expression"(ibid.).
The Court returnedto the question of blended political and
commercial speech in a 1989 case involving a New York state
regulation that prohibited the operationof commercial enterprises in student dormitories (Boardof Trusteesv. Fox 1989).
Here, a group of students protesteda ban on Tupperware-type
partiesat which householdproductswereofferedforsale amidst
discussionsabout such mattersas how to run an efficient home.
The Supreme Court upheld the ban, finding that the combined commercial and political speech was not "inextricably
intertwined"such that the entirety had to be classified as noncommercial.
In 1993, the SupremeCourt presentedyet anotherstandard
for determining the commercial or noncommercial nature of
corporatespeech in a case in which the Court found a Florida
statute that banned "direct, in-person, uninvited solicitation"
by certified public accountants to be an unconstitutional restriction (Edenfieldv. Fane 1993, p. 764). Acknowledging that
"ambiguitiesmay exist at the margins of the category of commercial speech" (ibid., p. 765), the Court found the personal
solicitations to be commercialexpression,which the court defined as speech that "is linked inextricablywith the commercial arrangementthat it proposes"(ibid., p. 767).
This review of U.S. Supreme Court cases shows that U.S.
commercialspeechdoctrine is unsettled. The researchindicates
that future decisions regarding First Amendment protection
for integrated marketing communication will be made on a
case-by-casebasisapplying indefiniteSupremeCourtstandards.
As Table 1 illustrates,the Court has provideda confusing array
of findings regarding the definition and natureof commercial
speech. The 2002 Kaskyv. Nike, Inc.case, in which these precedents were applied, provides important insight into the potential impact of such imprecise rulings.
Kasky v. Nike, Inc.
In the mid-1990s, Nike, Inc. responded to extensive public
criticism of its labor practices with a public relations campaign that included letters from Nike representativesto university presidentsand athletic directors,a pamphlet explaining
the company's labor practices, news releases objecting to
"sweatshop"allegations, a posting on its Web site about its
"codeof conduct," a letter to the editor of the New YorkTimes
in which Nike defended its labor practices, and advertisements in leading newspapers to publicize a positive report
from a private investigation of working conditions in Nike
factories.
In 1998, Californiaresident Mark Kasky sued Nike, charging that through its public relations campaign, the company
had engaged in unfair and deceptive practices under Califor-

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97

TABLE I
Key Findings in U.S. Supreme Court Commercial Speech Cases
1942

Purelycommercialadvertisingwarrants no constitutionalprotection (Valentinev.Chrestensen).

1975

Commercialspeech deserves a degree of constitutionalprotection. Motives,means,and messages may make speech commercial
(Bigelowv. Virginia).

1976

Speech that does no more than propose a commercialtransactionis affordedlimitedconstitutionalprotection to ensure truthful
State Boardof Pharmacy
commercialinformationis unimpaired.Content is most importantin determiningcommercialspeech (Virginia
CitizensConsumerCouncil).
v. Virginia

1980

Commercialspeech includesexpression related solely to the economic interests of the speaker and the audience (CentralHudsonGas
& ElectricCo.v.PublicServiceCommission).

1983

Politicalstatements made in the context of commercialtransactionsare not fullyprotected under the FirstAmendment.Whenall are
present,economic intent,advertisingformat,and product/servicereferences may make speech commercial(Bolgerv.YoungsDrug
ProductsCorporation).

1988

Commercialspeech that is "inextricablyintertwined"with politicalspeech is affordedthe full protection of the FirstAmendment.The

of the
nature of speech taken as a whole must be considered when determiningconstitutionalprotection (Rileyv. NationalFederation
Blind).

1993

Commercialspeech is linkedinextricablywith the commercialarrangementit proposes (Edenfieldv. Fane).

nia's false advertising statute. Kasky asserted that Nike had

made a number of false statements regarding the working
conditions under which Nike products are manufactured
(Kaskyv. Nike, Inc. 2002). In court, Nike successfully argued
that becauseits communication was constitutionally protected
free speech, the suit was barredby the First Amendment. The
California Court of Appeals affirmed the trial court's decision, but the CaliforniaSupreme Court reversedand remanded
for further proceedings to determine whether any false representations were made.
Noting that the U.S. Supreme Court had not adopted an
"all-purposetest" to distinguish commercialfrom noncommercial speech, the CaliforniaSupreme Court found that "a close
reading"of commercial speech precedentssuggested that "it is
possible to formulate a limited-purpose test" (Kaskyv. Nike
2002, p. 960) requiringconsiderationof three elements: a commercial speaker,an intended commercial audience, and representations of facts of a commercial nature.
In applying this new test, the court found that the first element was satisfied because the speakers,Nike, and its officers
and directors,were engaged in commerce. The second element
was met because Nike's letters to university presidents, athletic directors, and to the New YorkTimeswere addresseddirectly to actual and potential purchasersof Nike products. The
letter to the editor, for example, referredto Nike's labor practices in saying that "[clonsumersare savvy and want to know
they support companies with good products and practices"and
that "[diuring the shopping season, we encourageshoppers to
remember that Nike is the industry'sleader in improving factory conditions" (Kaskyv. Nike, Inc. 2002, p. 963).
The third element was met, according to the court, because Nike made factual representationsabout its own busi-

ness practices in describing its own labor practices and working conditions in factories where its products were made. The
court observed that Nike addressed matters within its own
knowledge, putting the company in a position "to readily
verify the truth of any factual assertions it made on these topics" (ibid.).
The court further found that Nike's statements were "not
removed from the category of commercial speech because they
were intermingled with noncommercialspeech"(ibid., p. 966).
In order for the messages to be "inextricably intertwined,"
the court said, there would have to be "some legal or practical
compulsion to combine them" (ibid., p. 967). In this case,
"[njo law required Nike to combine factual representations
about its own laborpracticeswith expressionsof opinion about
economic globalization, nor was it impossible for Nike to
address those subjects separately"(ibid.). Nike's speech loses
the full measure of constitutional protection, the court said,
"only when it concerns facts material to commercial transactions" (ibid.).
In so ruling, the court createda new test for defining commercial speech, significantly expanding the types of corporate
expressionthat can be categorizedas commercial speech under
Californialaw. The impact of the decision reachesfar beyond
the state's borders, however, because the new law applies not
only to the communication of California-basedcompanies, but
also to the communication of any company that does business
in that state or whose messages reachCaliforniacitizens.
DISCUSSION
This review of U.S. commercial speech doctrine demonstrates
that the integration of public relations messages with adver-

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tising and marketing messages may alter First Amendment

protection afforded corporate speech by diluting the constitutional safeguards historically applied to public relations
expression. However, the U.S. Supreme Court'sevolving doctrine on commercial speech lacks both the consistency and
predictability needed for corporations to fully evaluate the
legal risks of integration.
In applying U.S. SupremeCourtprecedentsto IMC, it seems
certain that traditional product/serviceadvertising, as well as
marketing-relatedpublic relations messages, will be classified
as commercial speech and regulated as such. The analysis also
suggests that public relations communication designed to enhance brand and organizational image, and including representations of fact about a company'sproducts, services, and/or
business, might also be included under the commercialspeech
umbrella. Both publicity effortsdesigned to promote products
and services and other forms of public relations communication, such as corporateimage advertising, institutional branding messages,and socialresponsibilityreports,might be deemed
to constitute commercial expression.
Bolger(1983) provides the strongest evidence of the U.S.
SupremeCourt'swillingness to designate public relationscommunication as commercial speech when it is part of an integrated commercial campaign. The Court's finding that
informationalmailings "constitutecommercialspeechnotwithstanding the fact that they contain discussions of important
public issues"(1983, pp. 68-69) is particularlyinstructive.Even
more compelling is the Court'sstatement that there is no reason to provide full constitutional protectionfor such statements
"when they are made in the context of commercial transactions" (ibid., p. 68), suggesting that public relations expression that is part of an integrated marketing campaign could
properly be interpretedas commercial speech.
Further evidence is found in the fact that the BolgerCourt
(1983) chose to view Youngs Drug Products Corporation's
speech in its entiretyas commercial rather than attempting to
separatethe commercial and noncommercialcomponents and
regulate them accordingly.Kaskyapplied similar reasoning in
rejecting the argument that Nike's statements should be removed from the category of commercial speech because they
were "intermingledwith noncommercialspeech"(2002, p. 967).
Of course, it should be noted that in cases in which the
courts find that corporate campaigns include commercial
speech and noncommercial speech that is indeed "inextricably
intertwined," the entirety of the combined speech would be
afforded the full protection of the First Amendment, thereby
enhancingthe constitutional protection afforded corporate
speech. For example, an alternative ruling in Kaskycould have
found that all of Nike's statements, including those designated as commercial speech, were entitled to fill protection
under the First Amendment.
Such cases are likely tO be exceptions rather than the rule,

however, in the context of IMC. The Court has consistently

emphasized that a company has the ability to separatepolitical messages from commercial messages to safeguardconstitutional protection. In addition, it has stressedthat commercial
speech cannot be immunized from regulation simply by attaching it to protected political expression.
These findings indicate that that the Court is most likely
to either separate combined corporate speech for regulatory
purposes or to consider the speech in its entirety to be commercial and regulate it as such. Clearly,such an approachsupports the Court'sdual interests in preventing the suppression
of speech on matters of public interest and in avoiding harms
caused by false and deceptive commercial communication.
Although the U.S. Supreme Court has failed to provide a
litmus test for defining commercial speech, it has identified
criteria related to both content and context as significant in
determining the nature of corporate expression. Indeed, one
of the earliest cases to recognize the need for constitutional
protection of commercial communication stated that "motives, means and messages"all might be important factors in
defining commercial expression (Bigelowv. Virginia 1975, p.
826).
VirginiaStateBoardof Pharmacy(1976) indicated that content is the most important element in judicial determinations regarding the nature of corporate speech. Yet neither
this nor succeeding decisions provide clear direction on exactly what types of expression constitute commercial content.
While Bolgernoted that referencesto products/servicescould
contribute to such determinations, it stopped short of saying
that such referenceswere "a necessaryelement" (1983, p. 67,
n. 13) of commercial speech.
In interpreting Bolger(1983), Kasky(2002) observed that
it did not understand"productreferences"to mean only statements about price, qualities, or availability of items offered
for sale. Rather, Kasky interpreted "product references" to
mean, "for example, statements about the manner in which
the products are manufactured, distributed, or sold, about
repairor warrantyservices that the seller provides to purchasers of the product, or about the identity or qualifications of
persons who manufacture,distribute, sell, service, or endorse
the product" (2002, p. 961). Such broad interpretation was
necessary,according to Kasky,"to adequately categorize statements made in the context of a modern, sophisticated public
relations campaign intended to increase sales and profits by
enhancing the image of a product or of its manufactureror
seller" (ibid., pp. 961-962). Certainly, if other courts adopt
such reasoning, it could mean that a broad range of public
relations messages not directly tied to product or service features are susceptible to commercial speech regulation.
Other factors cited by the U.S. Supreme Court as potentially significant are commercial intent, a commercial audience, and "advertising" format. Such factors may not be

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Winter2005

determinative when standing alone, but the Court has said

that a combination could be persuasive. For example, Bolger
(1983) ruled that while a finding of economic motivation
would be insufficient by itself to turn informational materials into commercial speech, the combination of this and other
characteristics supported a finding that the materials were
properly classified as commercial.
The BolgerCourt (1983) also seemed to assume that the
fact that a company is engaged in commerce and undertakesa
campaign of unsolicited mass mailings of promotional and
informationalflyers to members of the public shows economic
motivation. Virginia State Board of Pharmacyprovided additional evidence of such reasoning in finding that "we may
assume that the advertiser'sinterest is a purely economic one"
(1976, p. 762).
Since more than the commercial status of a company is
required to show commercial intent, however, a court will
seek additional proof that particular messages are economically motivated. For example, communication aimed directly
at consumer audiences is most likely to be viewed as commercial. It should be noted, however, that Kasky interpreted the
"intended audience" of commercial speech to include both
"actualor potential buyers or customers of the speaker'sgoods
or services or persons (such as reportersor reviewers)likely to
repeat the message to or otherwise influence actual or potential buyers or customers"(2002, p. 960). Again, if adopted by
other courts, this broadreading, which allowed the Kaskycourt
to include many of Nike's public relations materials in the
category of commercial expression,could significantly increase
the types of corporate messages subject to regulation under
commercial speech doctrine.
Although Bolger(1983) found that the format of a particulAr communication was not conclusive proof of commercial
expression, the Court indicated that an "advertising"format
could be a factor that contributed to the definition of commercial speech. Thus, in the presence of other commercial
characteristics, particular channels of communication might
also be significant in influencing a court's decision. At the
same time, these cases provide no indication that internal
message sources would influence judicial decisions on such
matters. In other words, a court is not likely to inquire about
whether a particular message was produced by an advertising, marketing, public relations, or IMC unit.
IMPLICATIONS
This review of cases illustrates considerable uncertainty surrounding future regulation of corporate communication under evolving U.S. commercial speech doctrine. The lack of
clarity in U.S. Supreme Court precedents provides a fuzzy
picture of the potential impact of IMC on a corporation'sFirst
Amendment rights. At the same time, the work reveals the

99

potential for IMC to broaden the range of corporatemessages

subjected to judicial scrutiny, both increasing a company's
legal exposure and expanding government regulation of corporate speech.
Perhaps the most important finding is that public relations expression is notfully protected under the First Amendment as both conventional wisdom and some scholarly studies
have suggested (see, e.g., Petersen and Lang 2000). Public
relations communication designed-and
viewed by the
courts-to support marketing objectives clearly falls within
the category of commercial expression for regulatorypurposes.
Indeed, this would be true whether a company adopts an IMC
model or applies a more traditionalmultidisciplinary approach
to corporation communication. In addition, it should be emphasized that not all public relations communication will be
automatically categorized as commercial if a company integrates its communication functions. The Supreme Court has
made it clear that corporations enjoy the right to engage in
fully protected speech in the political arena.
The issue significant to this study is whether IMC broadens the scope of corporatecommunication messages that may
be viewed and regulated as commercial speech. The research
indicates that it could. Although the Supreme Court has provided a confusing legal framework that fails to clarify exactly
when a company's communication crosses the line from the
political to the commercial marketplace, IMC practices could
have some influence on where that line is drawn. The study
suggests that the affiliation of nonmarketing-related public
relations messages with less protected forms of commercial
communication may increase the possibility for messages traditionally viewed as political to be classified as commercial
for regulatory purposes.
While this finding does not necessarily warrant a lesser
role for public relations in IMC, it does mean that corporations with integrated communication functions should take
steps to diminish the threat of litigation and potential liability by addressing the risks associated with integration early
in the IMC process. Companies should be mindful of the full
range of factorsthat could influence a court'sdetermination of
the constitutional status of corporatemessages and should be
fully awareof federaland state laws relatedto commercialspeech.
BecauseIMC involves the management of "all brand messages,
not just those produced by traditional advertising and promotion" (Duncan and Mulhern 2004, p. 16), such understanding of the legal and regulatory environment is critical.
For example, the potential legal impact of internal structures and operating philosophies should be considered-particularly the effects of an IMC mindset that leads to the
development of mixed commercial and political messages.
While the unification of corporate communication functions
and messages could have a significant positive impact on brand
and organizational image, it could also lead tO legal prob-

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100

TheJournal of Advertising

lems. An internal operating environment in which IMC professionals attempt to influence nonmarketing communication
messages to achieve maximum impact for advertising and
marketing efforts could blur the distinctions between political
and corporatespeech, causing company writers and spokespersons to inadvertentlylink political messagesto marketing messages,thus increasinga company'slegal exposure.As an example,
in the Kaskycase, the Nike spokesperson'sreferenceto customers and the shopping season in comments regardinglaborpractices was cited by the court as evidence of commercial intent.
Although there may not be one "best" IMC structure for
addressing such risks, companies that choose to integrate their
communication functions should adopt a model that allows
for the strategic integrationof corporate communication objectives and tactical separationof corporate commercial and
noncommercial messages. In other words, to the extent possible, corporatemessages related to a company'sviews on matters of public concern should be disseminated separatelyfrom
messages about products, services, brands, and the organization. This "strategic integration/tactical separation"approach
will help prevent political messages from being linked to commercial messages in the eyes of the courts. Thus, just as broader
corporatedecisions should be screenedfor "how they affect the
brand" (Duncan and Mulhern 2004, p. 15), corporate messages-including the context in which they aredisseminatedshould be screened for how they might affect judicial
perceptions regarding the nature of the communication.
With respect to public relations messages particularly,
publicity and other promotional efforts designed to attract
media and public attention to a company and/or its products
or services may be most likely to generate public scrutiny and
become the targets of potential lawsuits. However, other forms
of public relations communication also might form the basis
of a legal claim. For example, a company'sannual financial report, an executive speech, or a company fact sheet might include statements that could be called into question. Given the
uncertaintyregardingthe potential impact of both content and
context on judicial determinationsregardingthe natureof corporate speech, companies should consider a broad range of
corporatemessages to be commercial for regulatory purposes.
Because an integrated approach to corporate communication may diminish the "breathingspace"provided for potentially misleadingor falsecorporatestatements,IMCprofessionals
and lawyers should work together to ensure that an appropriate level of due diligence is performedto confirm the truthfulnessof all public statements.While FTCguidelines on deceptive
communication practicesprovide a good legal measurefor IMC
efforts, individual state requirementsfor truthful commercial
communication should also be consulted. The intent should be
to identify "high-risk"communication activities and messages

that could invite lawsuits

or

makean organizationmorevul-

nerable to legal liability should a suit be filed.

Such review may be particularlyimportant for public relations professionalsinvolved in IMC. While their counterparts
in advertising and marketing have a long history of operating
under FTC rules and state "falseadvertising"statutes, public
relations professionals have traditionally viewed their work
as being beyond the reach of such regulations. Thus, they
may have some catching up to do in terms of acquainting
themselves with FTC rules and state laws. The intent, of
course, is to avoid or diminish the costs of litigation by ensuring familiarity and compliance with commercial speech laws
and regulations by all IMC professionals.
It is important to note that under FTC guidelines, the good
intentions of a corporation and its representatives are irrelevant in determinations of whether a particular message is
false, deceptive, or misleading. Deception is viewed as a material representation, omission, or practice that is likely to
mislead a reasonableconsumer (see FTC 1984, p. 165). Falsehoods may be express or implied, meaning that deceptive information may be technically false or may simply mislead
listeners because it is incomplete or in some other way creates
a false impression. It is important to note that under FTC
guidelines, participants in the commercial marketplacemust
also be able to verifythe truthfulness of their claims. When
compared with the broad freedom to communicate in the political marketplace, such strict standardsmay be particularly
constraining to public relations professionalswho frequently
must respond to media and other inquiries with little time
for researchor reflection.
Nonetheless, IMC practitioners would be wise to assume
that all factual statements made in referenceto products, services, operations, management, employees, and other aspects
directly related to how their organizationsconduct their businesses are commercial messages for regulatory purposes. In
addition, companies should develop policies that spell out
the types of information that may be addressed in publications and by company representativesin public forums, and
should train company spokespersonsto recognize the risks of
communicating in a highly regulated legal environment.
Companies should also consider the potential "chilling"
effect of indefinite commercial speech doctrine on corporate
communication. Because they are not able to fully assess potential legal risks, corporateleaders and/or IMC professionals
may opt to limit their company'spublic communication (see,
e.g., Marcantonio2003; Paladino 2004; Young 2003). For example, as a result of the Kaskydecision, Nike decided to forgo
externalpublication of its social responsibilityreportand limit
its participationin public events and media forums in California (Nike 2003). Although such action may not be warranted
in all situations, the legal risks involved in discussing issues
of public interest that also relate to the company and its products, services, or operations should be weighed.
Finally, IMC professionals should consider the potential

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Winter2005

for even greater regulation of integrated marketing communication in the future. For example, some legal scholars have
argued that because all corporate communication on all matters is inherently commercial, it should be regulated as such
(see Abrams 1983, arguing that legislative petitioning by
business enterprisesshould be classified as commercial speech,
"neither in need of nor deserving of the full reach of First
Amendment protection," p. 586). Whether integrated communication practices could hasten the adoption of such views
on a broad scale should be addressed. While an argument can
be made that raising the legal bar for truthful communication
by corporations is a good thing, questions related to First
Amendment freedomsarenot so easilyresolved.Although "there
is no constitutional value in false statements of fact" (Gertzv.
RobertWelch,Inc. 1974, p. 340), there is constitutional value in
protecting the freedom of corporations to participate in the
political and commercial marketplaces. The extent to which
IMC practices may limit that freedom is worthy of reflection.
FUTURE RESEARCH
As IMC continues to expand throughout the United States
and the world, the laws of the variousstates and nations should
be examined in an effort to better understand legal considerations related to integrated communication practices. For example, an analysis of individual commercial speech laws in
the 50 states would help companies evaluate and respond to
legal risks specific to particular jurisdictions. A deeper understanding of potential legal challenges encountered abroad
would be valuable for companies interested in developing or
expanding IMC programs on a global scale.
Studies that examine practice issues related to IMC and
the law are needed as well. For example, the views of corporate leaders and IMC professionals on legal issues associated
with integrated marketing communication could be important in understandingthe extent to which legal concernsmight
impede its future development. Research questions could include: What key legal concerns and challenges do IMC practitioners face? Are IMC professionals familiar with laws and
regulations that affect their practices? How are companies
addressing legal issues associated with integration? What role
does legal counsel play in IMC efforts? How are IMC materials evaluated for legal purposes? What specific criteria are
used to analyze the legal risks associated with IMC messages?
Answers to such questions could lead to the development of
"legal best practices" in IMC.
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